The Aftermath of Crawford and Davis

57 Pages·2017·0.33 MB·English

by  Kimberly D. Bailey

BYU Law Review
Volume 2009|Issue 1 Article 1
3-1-2009
The Aftermath of Crawford and Davis:
Deconstructing the Sound of Silence
Kimberly D. Bailey
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Recommended Citation
Kimberly D. Bailey,The Aftermath of Crawford and Davis: Deconstructing the Sound of Silence, 2009 BYU L. Rev.1 (2009).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol2009/iss1/1
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The Aftermath of Crawford and Davis:
Deconstructing the Sound of Silence
Kimberly D. Bailey
Abstract: Victims of domestic violence often do not want to testify in
court, and if they do, they often recant and/or testify on behalf of their
batterers. To overcome this challenge in prosecuting these types of cases,
prosecutors have implemented a practice of victimless prosecutions where
the out-of-court statements of victims are used in lieu of their live
testimony in court. This practice has been limited, however, by the
United States Supreme Court cases Crawford v. Washington and
Davis v. Washington, which limit the use of out-of-court testimonial
statements in criminal cases when the defendant has not had an
opportunity to cross-examine the witness. For this reason, some out-of-
court statements are no longer admissible in domestic violence trials. In
evaluating how this change should affect the future prosecutions of
domestic violence cases, this Article critiques the practice of victimless
prosecutions from the perspective of the victim. Specifically, this Article
proposes that scholars consider whether victimless prosecutions have been
effective in meeting the goals of victim safety, gender equality, and
autonomy. Drawing upon feminist scholarship and literature on the
legal silencing of subordinate groups, it explores whether victimless
prosecutions may discourage women from speaking, which is an
important act of empowerment. More importantly, because victimless
prosecutions remove victims from the prosecution process, they no longer
interact and engage in a dialogue with the criminal justice system. This
legal silence may allow the legal system to ignore victims and to pursue
its own agenda of successful prosecutions, may limit the criminal justice
system’s ability to get direct input from victims on whether domestic
violence laws and policies are effective, and may make victims complicit
in their subordination as women. While this Article acknowledges that

 Assistant Professor of Law, Chicago Kent College of Law. B.A. 1995, Indiana
University; J.D. 2000, The University of Michigan Law School. I would like to thank
Katharine K. Baker, Norman Bay, John S. Beckerman, Dorothy A. Brown, Pat Chew, Jack
Chin, Brietta R. Clark, Sarah K. Harding, Cynthia Lee, Donna Lee, Melissa Murray, Alexandra
Natapoff, Song Richardson, Gary Williams, and participants of the 2008 Joint Conference of
the Western Law Teachers of Color and Conference of Asian Pacific American Law Faculty for
their extremely helpful comments on various drafts of this Article.
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victimless prosecutions may be appropriate for some victims, given the
potential harm of victim silencing and the fact that Crawford and
Davis will limit the use of victimless prosecutions in at least some cases,
the criminal justice system should evaluate whether there are victims
who can and will testify. Directly addressing some of the reasons that
victims do not testify may limit victim silence, which may be a better
long-term approach to the domestic violence problem.
INTRODUCTION
In 2004, the United States Supreme Court issued a landmark
decision, Crawford v. Washington,1 which changed the landscape of
the Sixth Amendment’s Confrontation Clause jurisprudence.
Crawford held that out-of-court statements that are “testimonial”
cannot be admitted to prove the truth of the matter asserted in a
criminal trial unless (1) the declarant is unavailable, and (2) the
defendant had a prior opportunity to cross-examine the declarant.2
After Crawford, it was not clear how this decision might impact
domestic violence prosecutions. Specifically, Crawford foreshadowed
the possible end of what some call victimless prosecutions,3 in which
victims’ statements from 911 calls and police statements are used in
lieu of the victims’ live testimony at trial.
After much anticipation, the United States Supreme Court finally
spoke on this issue in Davis v. Washington.4 Unfortunately, the
language that the Court adopted in Davis did not provide the
definitive answer that prosecutors, defense counsel, and lower courts
anticipated.5 The Court held that out-of-court statements are
nontestimonial when they are “made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to

1. 541 U.S. 36 (2004).
2. Id. at 68.
3. These types of prosecutions are also sometimes referred to as “evidence based”
prosecutions. See, e.g., National District Attorneys Association, Evidence Based Prosecution of
Domestic Violence Cases, http://www.ndaa.org/education/ndaa/nac_evidence_based_
prosecution_domestive_violence_cases.html (last visited Jan. 20, 2009).
4. 547 U.S. 813 (2006).
5. See id. at 834 (Thomas, J., concurring in part and dissenting in part) (arguing that
the majority’s test in Davis is unpredictable); Deborah Tuerkheimer, Crawford’s Triangle:
Domestic Violence and the Right of Confrontation, 85 N.C. L. REV. 1, 20–21 (2006)
[hereinafter Tuerkheimer, Crawford’s Triangle] (arguing that Davis offers little guidance to
lower courts or predictability to litigants).
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meet an ongoing emergency.”6 These statements are testimonial
when “the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant
to later criminal prosecution.”7
After Davis, there is no question that in some circumstances,
victimless prosecutions will no longer be a viable option for
prosecutors of domestic violence cases. Specifically, if lower courts
are true to Crawford, many out-of-court statements should no
longer be admissible in domestic violence trials because the
Crawford opinion expressed a specific animus toward the
government’s involvement in the production of evidence. In
preparation for domestic violence trials, government actors
frequently use statements that are produced in a sophisticated
manner.
The purpose of this Article is not to provide a critique of the
Davis and Crawford opinions.8 Instead, given the limitation on the
use of victimless prosecutions, this Article attempts to grapple with
how prosecutors should handle domestic violence cases post-
Crawford and post-Davis. As part of my analysis, I critique the
practice of victimless prosecutions from the perspective of the victim.
Specifically, I invite scholars to consider whether victimless
prosecutions have actually helped domestic violence victims in the
manner that they were originally intended to help them. In addition,
scholars should explore whether these types of prosecutions might
have negative, although unintended, consequences for domestic
violence victims.
Indeed, the term victimless prosecution is itself problematic
because it suggests that there is no victim in this legal process. Of
course, there is a victim, but the victim’s presence, specifically her
voice, is limited. The practice of victimless prosecutions actually

6. Davis, 547 U.S. at 822.
7. Id.
8. For examples of articles that critique these opinions, see Myrna S. Raeder, Domestic
Violence Cases After Davis: Is the Glass Half Empty or Half Full?, 15 J.L. & POL’Y 759 (2007)
(arguing that Davis is unsatisfactory for both prosecutors and defense lawyers because it still is
not clear which out-of-court statements violate the Confrontation Clause in the domestic
violence context), Tuerkheimer, Crawford’s Triangle, supra note 5, at 5 (criticizing the Court’s
analysis of the Confrontation Clause in the domestic violence context), and Deborah
Tuerkheimer, Exigency, 49 ARIZ. L. REV. 801, 825–34 (2007) [hereinafter Tuerkheimer,
Exigency] (criticizing the Court’s analysis of the Confrontation Clause in the domestic violence
context).
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arose out of necessity, and I certainly do not want to suggest that
prosecutors or other legal actors in the criminal justice system
actively seek to limit the voice of domestic violence victims. Indeed,
domestic violence victims do not testify for a variety of reasons, many
of which have nothing to do with the criminal justice system or its
actors.9
Yet, the reality is that once the victim’s statement is taken from a
911 call or from a police officer, the prosecutor need not hear from
her again. We do hear a limited form of the victim’s voice at trial,
but victimless prosecutions arguably lead to a practice where the
victim’s voice is not heard throughout most of the prosecution
process, nor is it considered in the development of domestic violence
policy. In addition, when the prosecution of the batterer is not in the
victim’s best interest,10 her wishes may be ignored.
Part I of this Article discusses the history of domestic violence
criminal law and the role that the women’s movement played in the
evolution of the law. Specifically, the issue of domestic violence
became more of a public issue rather than just a private one. By
focusing on this important issue, the women’s movement had two
important goals: (1) to keep women physically, mentally, and
emotionally safe;11 and (2) to attack the legal and political structures
that subordinate women and that allow domestic violence to exist in
the first place. Part I also discusses how this movement led to
aggressive arrest and prosecution policies. These policies ultimately
led to victimless prosecutions, which allowed prosecutors to
aggressively prosecute domestic violence perpetrators without the
testimony of victims, who often do not want to testify.

9. See infra Part I.D.
10. See infra Part I.C.3 (discussing how some experts and scholars argue that mandatory
arrest and prosecution policies may make violence worse for some domestic violence victims).
11. While men can also be victims of domestic violence, eighty-five percent of
victimizations by intimate partners in 2001 were against women. Callie Marie Rennison,
Intimate Partner Violence, 1993–2001, BUREAU JUST. STAT. CRIME DATA BRIEF, Feb. 2003,
at 1, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ipv01.pdf. In addition, domestic
violence occurs in both heterosexual and homosexual relationships. Scholars have discussed the
importance of recognizing that domestic violence occurs in circumstances outside of the
woman victim/heterosexual relationship dynamic. See, e.g., Phyllis Goldfarb, Describing
Without Circumscribing: Questioning the Construction of Gender in the Discourse of Intimate
Violence, 64 GEO. WASH. L. REV. 582 (1996); Elizabeth M. Schneider, Particularity and
Generality: Challenges of Feminist Theory and Practice in Work on Woman-Abuse, 67 N.Y.U. L.
REV. 520 (1992). While additional dynamics may be explored in future works, this Article
focuses on women victims in heterosexual relationships.
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Part II discusses Crawford and the sophisticated manner in
which statements from 911 calls and police statements are gathered
and preserved for use at domestic violence trials. Based on
Crawford’s specific concern with the involvement of government
actors in the production of evidence, this Part argues that lower
courts should interpret Davis to limit this type of sophisticated
practice.
Part III then argues that while the original intent of victimless
prosecutions may have been to protect women, there is no real
evidence that all women are actually safer when they do not testify
than when they do testify. In light of this lack of evidence, I draw
upon feminist scholarship and literature on the legal silencing of
subordinate groups to query whether a nondiscriminatory use of
victimless prosecutions is effective in realizing the women’s
movement’s original goals of safety, gender equality, and autonomy.
Victimless prosecutions may encourage women to remain silent
when speech is an important act of empowerment in and of itself.
Most obviously, victims are silent because they are not testifying and
speaking out against their batterers. More importantly, because
victimless prosecutions remove victims from the prosecution process,
victims no longer interact and engage in a dialogue with the criminal
justice system.
This legal silence may be problematic for three reasons. First, it
may allow the legal system to ignore victims and to pursue its own
agenda of successful prosecutions when the needs of these victims
should be an important focus of legitimate domestic violence laws
and policies. Second, it may limit the criminal justice system’s ability
to get direct input from victims on whether these laws and policies
are effective. Third, it may make victims complicit with their own
subordination as women.
Part IV of this Article, therefore, argues that given the legal
limitations that Crawford and Davis place on victimless prosecutions
and the possibility that these types of prosecutions might be harmful
for some victims, we should develop ways to directly address the
reasons that women may hesitate to testify. While one response to
Crawford and Davis could be that prosecutors automatically dismiss
most prosecutions because most women recant or refuse to testify,12

12. Tom Lininger conducted surveys that found a substantial drop in domestic violence
prosecutions after Crawford. Tom Lininger, Prosecuting Batterers After Crawford, 91 VA. L.
REV. 747, 749–50 (2005). Specifically, he found that during the summer of 2004 half of the
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a better response would be to find more ways to encourage women
to participate in the system. I discuss three key reasons why women
fail to participate: a lack of material resources, a lack of protection
from batterers, and poor interactions with the criminal justice
system. I then use Chicago’s “Target Abuser Call” (“TAC”)
program as a potential model of a program that, at this time, seems
to be successful in encouraging victim participation by addressing
some of these reasons.
I caution, however, that there are two reasons that a systematic
implementation of similar programs will be difficult. First,
jurisdictions are plagued by limited resources. Second, many
domestic violence victims and legal actors may be skeptical that
victims can and will testify. For this reason, legal actors may be
tempted to fit as many statements as possible under Davis’
“nontestimonial” category instead of determining whether a
victimless prosecution is necessary or desirable in a particular case.
To address both of these issues, I apply Dan Kahan’s “gentle
nudges” approach to “sticky norms” and suggest that jurisdictions
might have to implement programs similar to TAC on an
incremental basis by first focusing on a small subset of victims of
high-risk offenders. Kahan has theorized that small changes over
time are the most successful in creating institutional change in the
enforcement of laws by legal actors. Incremental changes also put
less of a burden on jurisdictions that have limited financial resources.
I. THE HISTORY OF DOMESTIC VIOLENCE CRIMINAL LAW PRE-
CRAWFORD
A. Domestic Violence: A Private Matter
Domestic violence is a serious problem in the United States.
Between 2001 and 2005, twenty-two percent of nonfatal violent
crimes against women involved intimate partner violence.13 In
addition, thirty percent of all female murder victims were killed by an
intimate during this time period. It is difficult to know the exact

domestic violence cases set for trial in Dallas County, Texas, were dismissed because of
evidentiary problems. Id. In addition, in a survey of over sixty prosecution offices in California,
Oregon, and Washington, seventy-six percent indicated that their offices were more likely to
drop domestic violence charges when the victims recant or refuse to cooperate post-Crawford.
Id. at 750.
13. SHANNON CATALANO, U.S. DEP’T JUST., INTIMATE PARTNER VIOLENCE IN THE
UNITED STATES (2007), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ipvus.pdf.
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figures regarding domestic violence, however, because of the
likelihood of underreporting.14
While domestic violence has always been prevalent in the United
States, this country has not always criminally sanctioned it. By 1920,
wife beating was illegal in all states.15 Yet for several decades, law
enforcement and prosecutors did little to enforce these laws.16 The
criminal legal system treated disputes between a husband and his
wife as a private matter, and if the police did respond to a call, the
typical response was to separate the parties involved and to advise the
boyfriend or spouse to calm down.17
Two important catalysts, however, eventually moved domestic
violence away from the private sphere into the public sphere: the
women’s movement18 and civil lawsuits against cities that failed to
protect battered women.19
B. Domestic Violence: A Move to the Public Domain
Participants in the women’s movement were concerned about
domestic violence for two main reasons. First, they worried about
the emotional, physical, and mental safety of women.20 Second, they
viewed domestic violence as a manifestation of women’s legal and
political subordination both inside and outside of the home.21
Frustrated that the police minimized or ignored domestic violence,
feminists made the crime of domestic violence an important public
issue in the 1960s and 1970s. Specifically, they criticized state

14. Martha R. Mahoney, Legal Images of Battered Women: Redefining the Issue of
Separation, 90 MICH. L. REV. 1, 11 (1991).
15. Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic
Violence Prosecutions, 109 HARV. L. REV. 1849, 1857 (1996).
16. Reva B. Siegel, “The Rule of Love”: Wife Beating As a Prerogative and Privacy, 105
YALE L.J. 2117, 2170–71 (1996).
17. Id.
18. Specifically, members of the movement protested, created shelters where victims
could find refuge, and led educational campaigns designed to change attitudes about domestic
violence. Linda G. Mills, Commentary: Killing Her Softly: Intimate Abuse & the Violence of
State Intervention, 113 HARV. L. REV. 550, 557 (1999); see also Siegel, supra note 16, at 2171.
19. Mills, supra note 18, at 558–59; Siegel, supra note 16, at 2171.
20. Mills, supra note 18, at 557.
21. Hanna, supra note 15, at 1854; see also Schneider, supra note 11, at 527; Siegel,
supra note 16, at 2128–29.
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inaction in curbing the problem of domestic violence and advocated
the reform of institutional responses in the criminal justice system.22
Large civil awards against cities that failed to protect women who
were victims of domestic violence also created a sea change in the
way that law enforcement reacted to reports of domestic abuse. In
Sorechetti v. City of New York, the New York Court of Appeals
awarded the plaintiff a $2 million judgment.23 In this case, the
plaintiff’s father attacked her with a fork, knife, and screwdriver, and
he tried to dismember her leg with a saw.24 The court found that the
police had a special duty to protect a battered woman and her
daughter and that this duty was breached when the police failed to
investigate a report that the daughter had not returned from a visit
with her father.25
Similarly, Tracy Thurman received $2.9 million dollars after
suing the city of Torrington, Connecticut.26 Thurman’s estranged
husband had been put on probation for smashing the windshield of
her car while she was still in it.27 Yet, even after he repeatedly
violated the terms of his probation and restraining order, the police
failed to arrest him.28 On one particular day, Thurman called the
police after her estranged husband violated his restraining order.29
Before the police officer arrived, however, her husband stabbed her
repeatedly and severely injured her.30 The court found that the police
had violated the Fourteenth Amendment’s Equal Protection Clause
by treating violence by male intimates differently from violence
committed by strangers.31

22. Mills, supra note 18, at 557. It is also worth noting that there was a women’s
movement in the 1850s that also advocated against domestic violence and in favor of a
structural remedy against this problem. Siegel, supra note 16, at 2128–29.
23. Sorechetti v. City of New York, 482 N.E.2d 70 (N.Y. 1985).
24. Id. at 72–74.
25. Id. at 76–77.
26. Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984); Mills, supra
note 18, at 1525–26.
27. Thurman, 595 F. Supp. at 1525.
28. Id.
29. Id. at 1525–26.
30. Id.
31. Id. at 1527–29.
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C. The Rise of Mandatory Policies
In response to both the women’s movement and civil litigation
against police departments, legislators and prosecutors took
increased action to curb domestic violence on an institutional level.
As discussed below, states adopted mandatory arrest and prosecution
policies. These policies, and their results, however, received mixed
reactions from advocates of domestic violence victims.
1. Mandatory and pro-arrest policies
In an attempt to increase the institutional response of the
criminal justice system, Oregon passed the first mandatory arrest
statute in the country in 1977.32 The statute required police to arrest
a suspect if there was probable cause that he had committed a
misdemeanor domestic violence offense.33 In the early 1980s,
Lawrence Sherman, supported by the National Institute of Justice
(“NIJ”), conducted a study of the Minneapolis Police Department.34
Sherman conducted a field experiment of misdemeanor spousal
abuse with three intervention strategies: arrest, ordering the suspect
away from the scene for twenty-four hours, and trying to restore
order.35 Based on the results from this experiment, Sherman
concluded that arrest was the most effective treatment in reducing
the likelihood of renewed violence.36
As a result, in 1984, the United States Attorney General
recommended that arrest be the standard police response to
domestic violence offenses.37 In 1994, Congress passed the Violence
Against Women Act (“VAWA”), which included a provision
authorizing the Attorney General to make grants available to state
and local governments that implemented mandatory or pro-arrest
programs.38

32. Joan Zorza, Mandatory Arrest for Domestic Violence: Why It May Prove the Best First
Step in Curbing Repeat Abuse, 10 CRIM. JUST. 2, 4 (1995).
33. Id.
34. Richard A. Berk et al., Studies: A Bayesian Analysis of the Colorado Springs Spouse
Abuse Experiment, 83 J. CRIM. L. & CRIMINOLOGY 170, 170–71 (1992).
35. Id.
36. Id.
37. Hanna, supra note 15, at 1859.
38. 42 U.S.C.S. § 3796hh (LexisNexis 2008). It is also worth noting that VAWA
originally included a civil remedy provision that was intended to provide victims of “gender
motivated violence” a federal civil cause of action against their perpetrators. 42 U.S.C.S. §
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